An incredibly brief review of the case: SDMI created an open challenge to break various forms of technical restrictions they had designed to allow music publishers to control how people use legitimately purchased music. A team led by Felten participated and was mostly successful at breaking them. The team wrote a paper, intending to publish it at a scientific conference. The RIAA/SDMI sent a letter to Felten, his employer, and the conference threatening them with legal action. Private legal discussions and a very public flap broke out. Felten filed a pre-emptive lawsuit, seeking to have his right to publish vindicated without waiting for a suit from the RIAA or SDMI. Immediately afterward, the RIAA publicly and repeatedly withdrew their threat to sue. Eventually the paper was, in fact, published, but the suit has continued.

On to yesterday's hearing. The judge has before him a request from the defense to dismiss the case - they state that there is no real issue since the threat has been withdrawn. The Plaintiffs oppose this - they feel the threat is real, even if the RIAA has now withdrawn it.

Each side is represented by a half-dozen attorneys. Felten and several of the other plaintiffs are present as well. There are four or five press representatives. Other than that, the courtroom is empty. The first thing the judge does is take care of some routine business - the plaintiffs have requested that a C program, tinywarp.c, be filed under judicial seal with the court. The judge accepts this. He then goes briefly over the case so far, saying that he feels fully briefed by the papers submitted by both sides. He invites the plaintiff's lawyer, Gino Scarselli, to speak and respond to the last set of papers filed by the defense, but cautions him to avoid repeating any of the arguments set forth already in the many papers filed.

Scarselli emphasizes that the plaintiffs are in court for more than just the single threatening letter - he notes that the threat of legal action was considered quite real by the universities, who assigned lawyers to deal with the threat. He notes that Felten's paper was described as a "recipe for circumvention" by the defendants. He says that Felten also fears criminal prosecution due to his desire to publish a paper on SDMI in Scientific American - since Scientific American pays for papers, unlike the conference, this makes publication of the paper a commercial enterprise which might be charged as a criminal violation of the DMCA.

The judge is rather skeptical. He states that the difference between Felten and Sklyarov is "night and day". Sklyarov's actions are clearly criminal to the judge - Felten's actions not at all.

Scarselli and the judge spar a bit over a possible amendment to the complaint, regarding what exactly the plaintiffs were seeking in the lawsuit, and Scarselli retires from battle. Next up is David Kendall for the RIAA, responding to Scarselli.

Kendall starts off by talking about a stipulation (an agreement on facts) that both parties were negotiating over. Apparently both sides had almost been able to reach an agreement, except that the RIAA wanted the agreement to include dismissing the lawsuit and the plaintiffs did not. Kendall moves on to emphasize the argument they are making - that the suit should be dismissed because there is no conflict between the RIAA/SDMI and Felten. There are three reasons why a suit might be dismissed in this fashion - for mootness, because the plaintiffs lack standing to bring the suit, or because the issue isn't ripe. The judge asks Kendall which of the three would apply to this case - Kendall disclaims mootness (because that implies there once was an issue, but no longer), and states that this could be dismissed under either of the other reasons.

Richard Phillips is called to speak for the Department of Justice. Phillips states that his argument has been covered by the papers submitted and sits back down.

At this point only 40 minutes or so has elapsed. Normally, the judge might now take the case for decision, then some time later issue a written decision - instead, he decides (obviously he planned to do this in advance, since he has notes prepared) to render his decision in the case orally and immediately. He notes that he's doing so to save both parties further time and trouble, which indicates that he agrees with the defense that the case should be dismissed.

The judge starts off with the basics, which must have been rather boring to the lawyers involved. Under the Constitution, courts are limited to deciding cases where there is an actual case or controversy. He states flat-out that he sees no case or controversy here, in case anyone in the courtroom missed the hint he's already given.

He now takes a deep breath and begins going through his notes. He recaps the case from the beginning. I'll spare you that, read the documents if you wish.

Finally we get to his analysis. There are two separate issues - is there a case against the private entities? Is there a case against the Federal Government? The judge looks at the private entities first.

Again he discusses the requirement that cases be limited to actual controversies, that judges can't rule on abstract, theoretical, or speculative cases. He uses the word "speculative" approximately 20 times during his opinion, always referring to the plaintiffs' case. He relates a rambling analogy about bank fraud, essentially saying that the plaintiffs were asking for blanket immunity against ever being sued or prosecuted, which was impossible. He covers in great detail the RIAA's retraction of their threatening letter, how they've plainly denied any desire to sue Felten or anyone else over Felten's original paper.

The judge now looks at the First Amendment considerations relating to the suit against the RIAA/SDMI. He notes that the courts are required to avoid Constitutional questions if at all possible. He also notes that according to case law on the subject, there must be a real and immediate threat, that must remain throughout litigation, in order for the courts to consider the Constitutional questions around a non-criminal law (that is, the part of the DMCA that doesn't involve criminal penalties, only the possibility of civil lawsuits). Since the threat has not remained throughout litigation, he sees no Constitutional questions relating to the non-criminal part of the DMCA. He also notes that Plaintiffs do not allege they intend to violate the statute [ed. note: I'm not sure which part of the DMCA the judge was talking about right now - he may have been getting ahead of himself and talking about the criminal penalties.] and thus proceeding further would be "pre-enforcement review", which is not permitted. He closes this section by saying that he finds the Step-Saver and Salvation Army cases (referred to in the briefs submitted by both parties) instructive.

Somewhere during this speech, one of the attorneys for SDMI starts grinning, hugely, as if his team has just won the Super Bowl. He continues grinning and looking over at the attorneys for the plaintiffs until the hearing is over. None of the other attorneys for either side show any particular reaction.

The judge now continues with the suit against the Federal Government for Constitutional violations. He notes that the plaintiffs have not been directly threatened by the Government, nor prosecuted. He contrasts Felten's situation with that of Dmitry Sklyarov - the plaintiffs don't sell their program to the public, they do it for scientific purposes. Again he mentions the Step-Saver case. He quotes from the DMCA extensively. He states that the Government and plaintiffs have no adverse legal interests - that is, there is no possible criminal threat to Felten for doing what he's doing, in the judge's opinion. He notes that in the Sklyarov case there is such an adverse legal interest - obviously, Sklyarov was imprisoned! - and suggests that the Sklyarov case is a better way to get any First Amendment consequences of the DMCA adjudicated by the courts. The plaintiffs are not "manufacturing", according to the judge; nor are they offering their code for sale. The judge segues to what he sees as deficiencies in the plaintiff's legal complaint - they did not assert they planned to fully violate the criminal sections of the DMCA, mainly their assertions were that the Act is unclear and vague. Finally he closes - the plaintiffs must have an "objectively reasonable fear" of prosecution in order for the required legal conflict to exist, and the judge sees no such objectively reasonable fear.

A few more sentences and he's done. He reminds everyone that he may revise his written/final opinion from what he just dictated. He doesn't provide a time-frame for when the written opinion might be expected.

And that's it. My impression is that the most important phrase in the decision is "night and day". Judge Brown saw Sklyarov as a pirate, well-deserving of a long imprisonment term, and Felten as a goodie-two-shoes scientist who didn't have a care in the world. The very factors that made Felten a "good" subject for a civil liberties case allowed the judge to rule that there wasn't a case at all. Both the Justice Department and the RIAA prefer to have their test cases with suitably unsavory defendants - Russian pirates and shady hacker magazines are much preferred over all-American Princeton professors. The RIAA won't make the mistake of sending threat letters to professors again - not until the DMCA issues have been well-settled in the courts, anyway. Some people have criticized the EFF for over-reaching - trying to make a case out of nothing. But to a great extent the civil liberties groups have to play with the hand they're dealt. Felten was legitimately threatened, and even if the RIAA saw their mistake and starting trying to weasel out of it, I can't fault the civil liberties groups for trying to pursue this. They plan to appeal, of course.

I wouldn't. Corley/2600 were just denied their appeal by the NY Supreme Court on Wednesday (?). See http://www.eff.org/effector/HTML/effect14.37.html# III for more (or not so much more) information. But none of this bodes well for any sort of speech that relates to cracking.

Sure, you could write a scientific paper on how to crack CSS. But, you'd have to provide source, you'd have to not sell or distribute it for profit, you'd have to be in good standing, with a professor working in security and computers...

Remember, the article states that the qualities that made Felten a goody-two-shoes were what saved him. Put yourself in the same standing, and you might have a chance, for a few more years.

Its noticable that Dr. Touretzky has been threatened by the MPA, but the threat has neither been withdrawn nor acted upon (AFAIK). It seems to me that the EFF might have used that in the Felten case as evidence that the threat against Felten was not an isolated case, and the withdrawal of the threat against Felten was an attempt to avoid clarification of the law.

(I know, in courts the most money wins, not justice or truth.... we have O.J. to thank for showing the country that.)

The OJ case isn't the best example of this maxim, though I do believe there is truth in it. If the LA police department weren't such a bunch of racist bastards in the first place, the defense couldn't have used that fact as a hook to cast doubt on OJs guilt.

Right. Everyone will believe you if you say it. Perhaps you can also say that you are from Mars and you will be famous. (For the sarcasm impaired - saying so don't make it so.)

It is obvious that Felten had published in academic journals before and that intended to do so with this research. If you publish something in an academic journal, you won't get prosecuted for it...that's the precedent I see. The solution is not to prepend silly disclaimers but to do the hard work required to place yourself in a position where you can hack to your heart's content and publish your results in prestigious peer-reviewed academic journals.

Easy answers are never correct.

P.S. OJ showed the ignorant in this country that. It has always been the case that money wins, not justice or truth.

As far as I know (and I might very well be wrong) there is _no_ precedent here. Dismissals aren't legal decisions, they are a _lack_ of legal decision. No legal decision has been rendered, thus no precedent set.

As far as I know (and I might very well be wrong) there is _no_ precedent here. Dismissals aren't legal decisions, they are a _lack_ of legal decision. No legal decision has been rendered, thus no precedent set.

Here's a lawyerly answer: It depends.

The Felten dismissal sets no precedent on the DMCA. The judge never made a ruling on the constitutionality of the DMCA, because he ruled that there was no justiciable case or controversy.

No decision on the DMCA == no binding precedent established on the DMCA.

On the other hand, if the decision is published (and it likely will be), the case will set (minor, advisory) precedent on JUSTICIABILITY issues. The court's making a decision on constitutional standing, and future courts may be bound by it.

Of course, since it's "only" a federal district case, other federal trial courts would only give it advisory, and not binding status. If the EFF takes the case up to the Third Circuit and gets the same ruling, the Third Circuit opinion (if published) would control all lower courts -- in the Third Circuit. Again, when I talk about "setting precedent" in this paragraph, I'm talking about the constitutional standing (justiciability) issue.

Moreover, dismissals are NOT just a "lack of legal decision". A dismissal, such as a summary judgment, can be entered by the court "with prejudice". These types of dismissals can operate as an adjudication on the merits, which means that the case is resolved with just as much finality as if a jury returned a defense verdict.

For anyone who's left reading this digression into civil procedure, I'll stop before getting into res judicata (claim/issue preclusion).

(I know, in courts the most money wins, not justice or truth.... we have O.J. to thank for showing the country that.)

Well the OJ decision was made by a JURY OF HIS PEERS, not a judge. If anything can be taken from the OJ trial, its that the jurors were not very bright and/or the government did a really horrible job of presenting its case. Probably a bit of both.

He has listed a 'Free Music Philosophy', which (I think) has merit. I think as a community, there should be a much larger effort on this subject to help further the cause.

I know it will be a long, hard fight (which might be impossible to win, who knows) against the RIAA, but they've done so many things lately that make me hate them to no end (like the proprosal on Ashcroft's Anti-terrorism bill that would allow them to hack into our computers and spy on us), so I would love to see them go down in flames.

Any article about someone suing the RIAA would definitely be of interest to me, and hopefully to many of you.

You need an amentdment there:
One was for commercial gain by a non American, non wealthy non large corperate interest, and the other was for an American reseacher in good standing.
History is rife with examples of companies that either bent the law, only to have it changed (because capitalism depends on those companies for the health of its economy), where as individuals who seek or toy with similar changes are far more likely to be nailed to the wall. Financial interest is a misnomer. Financial contribution to the economy (~= size of company, revenues) is the true measure the government and judicial process goes by when balancing the rights of the individual, and laws of the country. It's no surprise, for instance, that Disney was one of the main backers, each time the copyright laws have been extended. MS looks like they'll get a slap on the wrist (and a whole new generation of users), in light of the US's current economy.
Meanwhile, the Dimitri's, because their work will not feed back into the economy at nearly the same level as those two behemoths, is jailed. Obviously, it's not cut and dried, but you'd have to be quite naive to not factor in the importance of the participatory groups to the economy the judicial system in question operates in.

the judges decision seems valid as well. he's right there was no conflict but i understand felten and the university wanting to guard against the future. whats the statute of limitations on the dmca anyway? something i just thought of regarding a federal reaction. considering the recent events (sept 11) and the new definitions of hackers (those that break laws not those that code) as terrorists its possible that (IANAL) that felten could theoretically be charged with cyber terrorism by the feds.

if that were to occur i think the simplest defense is this. 1. gillete makes razor blades.
2. terrorists use razor blades to hijack airplanes
3. gillete is not a terrorist for making razor blades

1a. felten breaks SDMI
2a. bad hackers (terrorist) use SDMI to commit copyright infringement
3a. felten is not a bad hacker (terrorist) for making the tool.

It seems that the judge ruled here that since Felten didn't sell the code or make a product based off of it, he's in the free and clear from DMCA and other laws. He also didn't seem concerned with Scientific American selling copies of that code. I'd think this would make a precedent for anyone that wanted to, say, make DVD decryption software for scientific purposes. Or am I missing something here?

Right, so you can't sue someone to get a judgement in a case that hasn't been brought against you.
And, as much as you'd like to, you can't actually find out in advance if what you want to do will be judged legal before you do it. You have to wait until you've actually been sued in order to defend yourself.

That makes sense; otherwise, you'd have McDonalds suing everyone who spills coffee on themselves, alledging that the victem knew the coffee was hot.

Of course, it is a flaw in our government that the legislature creates the laws, and the courts interpret them, but the courts only deal with past events, so there's no way to know what a law means until someone is charged under it. It would be kind of nice to be able to say, "I will do this, but only if it's legal", but that's not possible in the US. This is probably because the court system requires motivated people on both sides and a lot of particulars to consider.

In Roe vs. Wade, the Supreme Court heard arguments and ruled although the original case was moot (Roe wasn't pregnant anymore) long before it reached the SC. But there were several special circumstances. A three-judge District Court, which consolidated the actions, held that Roe and Hallford, and members of their classes, had standing to sue and presented justiciable controversies. The SC understood that since it takes more than 9 months to get through the various lower courts, any particular woman's case was bound to be moot before they heard it. So they considered Roe as a representative of a class -- there was always _someone_ seeking an abortion. In addition, they consolidated Roe's case with that of Hallford, a doctor who would do more abortions if they were legal and hence didn't lose his standing in 9 months...

The SC doesn't want to decide hypothetical cases for two very good reasons. One is that most of the time the peculiar circumstances of a real case matter more than the abstract principles, so there is a likelyhood that a decision issued on a hypothetical case is likely to be too disconnected from reality. And the other thing is that historically many of the SC's worst rulings came from spewing about abstract principles that went far beyond the facts of the case at hand -- Dred Scott for instance.

On the other hand, the lack of a way to verify in advance that publishing a certain item is protected by the 1st amendment certainly does have a chilling effect on free speech... So is the prospect of having to pay lawyers a few $100K to defend you even when there is little doubt you'll win. Or maybe the problem isn't that asserting your constitutional rights is expensive and risky, but that writing and voting for unconstitutional laws poses no risk or expense for the legislators. Now, if we could have the sponsors of unconstitutional laws liable to pay the defense and other costs, and maybe behead any congressman who wrote 3 unconstitutional bills for treason against the constitution... But I think it would be a little hard to get that amendment through congress or state legislatures.

Now, if we could have the sponsors of unconstitutional laws liable to pay the defense and other costs, and maybe behead any congressman who wrote 3 unconstitutional bills for treason against the constitution... But I think it would be a little hard to get that amendment through congress or state legislatures.

Have it not go into effect, or apply to any actions prior to, oh.. say... 2021. Perhaps then the legislators could do the right thing, without having to worry about how it will effect themselves personally.

The separation is good, but the problem is that the courts never sit down and interpret new laws just so that everyone understands them; they wait until someone is accused of violating the laws, and then they interpret them.

Of course, I can't see any clear reason that it would be any different if the courts weren't separated. In the current scheme, Congress just passes anything they feel like, without regard for the constitutionality of the laws. Having a congressional section which could reject any law they deemed unconstitutional would be as good as having the courts do it, and it would presumably be done promptly. Of course, this branch would have to be essentially court-like, chosen for the ability to interpret legal language, but there's no reason it would have to take actual cases to establish precedent.

I think that, currently, the threat of a lawsuit is basically meaningless. Any particular pair of entities could find something to sue each other over, and could probably win, provided they weren't asking very much. It doesn't cost anything to ignore a letter.

If the RIAA had actually brought charges, that would be different, and Felton could have reasonably sued them over it. But sending scary junk mail is their First Amendment right, like it or not, and, in the eyes of the law, they never said they were a suitable plaintiff for a First Amendment vs DMCA case against Felton.

But taking a look at the hearing might provide some insight into how the judicial system works. . . Normally, the judge might now take the case for decision, then some time later issue a written decision - instead, he decides (obviously he planned to do this in advance, since he has notes prepared) to render his decision in the case orally and immediately

Deciding a case from the bench isn't the norm, but it's definitely not ususual. Long before the oral argument, the parties file extensive written briefs setting forth arguments and case citations, and the Judge (or, more likely, his clerk) has already reviewed those submissions in detail. Many judges believe that oral arguments by the parties don't typically clarify the case beyond what's in the briefs, and thus, decide the case before oral argument even begins. (Some judges even have a full written decision ready before oral argument-- sounds like this judge did.)

The very factors that made Felten a "good" subject for a civil liberties case allowed the judge to rule that there wasn't a case at all.

There's an old lawyer's addage that "easy cases make bad law." (Typical of the profession, there's also an addage that "hard cases make bad law," but let's ignore that one for the moment.) In other words, a judge faced with a situation where one party is clearly right, it's tempting to decide the case favorably to that party, even though the legal reasoning to get there is not the most sound. Here, there is no question that Felten was not subject to any continuing threat from the RIAA, and thus, there was no existing controversy. (The "chilling effect" argument was more interesting, but that goes to show you why easy cases make bad law.)

There's no question that Felten's case would have been far more effective a vehicle to challenge the DMCA if he had gone ahead and published the paper under the RIAA's threat, and then litigated the consequences (if any). But to put one's self in that position requires a martyrdom complex that Felten (and even Sklyrov) doesn't have.

Part of the "chilling effect" point in Felten v RIAA is that Professor Felten has limited control over whether he gets to publish his paper. Universities, publishers, and so on all get intimidated when an organization like the RIAA threatens to sue them if they give Felten a venue to present his research. The 2600 case shows that the threat to publishers is quite real.

It doesn't matter if Felton is willing to martyr himself to present his research (considering his website and this lawsuit I think it's clear that he is willing to go through quite a lot in the name of Free Speech). It doesn't matter because the traditional venues of presenting his speech have been restricted because of a vague law and the RIAA's legal threats.

how can these judges not see that the constitution is a growing entity. communication changes and so does the definition of speech.
just because the framers did not see computers or movies at the time does not make Digital/mass media a playground for first amendment abridgments.

actualy it would be a jury of the Defendants Peers....AKA Corprate swill. besides the peer system never works. when was the last time an 18 year old had a jury of 18 year olds? or how about a gang banger having gang bangers in the jury? or a poor man having poor men in his jury? same for women? it is not operated the way the definition states so felton 1 has no way of getting a jury of HIS peers since he is the plantiff, and the Corprateers don't cause the sysytem does not work the way it is supose to (in theory).

How would you argue this case to a normal person? If you told me that you are suing person A to let you do something that they initially forbade you to do, but subsequently (and publicly) gave you explicit consent for, I'd fall over laughing.

WHY would you want to add ANOTHER lawsuit to this world over something that didn't happen? Yes, it would have been nice if this HAD gone farther, but the threat of the lawsuit HAD THE INTENDED EFFECT. They backed off, the good guys won this round.

to try and prevent them from using lawsuit willy-nilly. You should not be sending out lawsuits that state untruths as laws, and threaten people.
They where trying to control him wielding the threat of a lawsuit as a weapon. this must end.

Ok, since there is not - and has never been - any reason to suppress academic research, I openly invite Prof. Felten to study and publish matters realted to the encryption involved in Adobe's E-book reader and in the ways DVD's are protected, and in any other controversial case. After all, he seems to be the only one who has an explicit permission to speak freely on such matters!

And then withdraw their threat after you hire a laywer. Eventually someone's going to file a SLAPP suit and make it stick. And you could make the argument, when that happens, that if damages don't represent a significant amount of the RIAA's yearly income, they will have no incentive not to continue with their tactics.

SLAPP = Strategic Lawsuit Against Public Participation. In other words, corporations threatening or even starting lawsuits that they know they can't actually win at trial, in order to scare people away from talk that the corps don't like. I think the RIAA's letter to Felten fits. But it's a new concept, only a few states (maybe only California?) have passed legislation about SLAPP, and I wouldn't hold my breath waiting for the best Congress money can buy to take up this issue at the federal level... So Felten can't use this in Federal court. But maybe now that he has a federal court's declaration that he never was in danger under the DMCA, he can file suit in California or another SLAPP state, if there is some reason that state's courts could have jurisdiction.

In a nutshell, someone using the legal system as a harassment tool. A few states have enacted SLAPP laws and they generally carry some pretty hefty penalties if the person or persons doing the harassing get found guilty.

Although free speech is supposed to protect expression made by
society's fringe elements as well as by the mainstream, public opinion
and even judges can be swayed by tales of mischievous crackers poised
to attack your computer.
"As soon as the judge says 'hacker,' you know you've lost," University
of Minnesota law Professor Dan Burk said. "There is an attempt to
paint defendants as unsympathetic, low-priority, on the fringe--to
make it seem like nobody respectable is going to be harmed except for
weird hacker types."

The problem with this is that popular speech rarely needs to be defended. Protecting unpopular speech is the crux of the freedom of speech, and as such it will be very difficult to have a lovable hero. I guess that's why it's considered a fundamental right - so congress won't fuck with it. Or at least that's the theory.

Expect ANY focus of control to be siezed by someone more interested in control than in what the focus was created to achieve. Try to take this into account when designing new systems. Try to take this into account when predicting the actions of existing systems.

I'm sorry about the Censorware Project, but please consider this when designing your replacement.

My girlfriend is studying to be a lawyer right now, but knowing me, she's obviously got a lot of new understanding of why I think certain shitty laws that circumvent other laws should be abolished *cough* DMCA *cough*. IANAL, but hopefully someday in the next few years, I can be married to one, and we can go on a rampage kicking this crappy DMCA all over the map as it is simply trying to hold up progress so that the elite can squeeze just a little more money out of their antiquated way of doing things.

Those who can't deal with change, usually get steam-rolled by it sooner or later. Lead, follow, or get out of the way. There's lots more of truthful cliche sayings out there that DMCA lovers had better listen to.

EFF is filing a Declaratory Judgment suit, meaning it is asking a
federal court to make a declaration of law. Since we represent the
plaintiffs, (the scientists and USENIX), we are asking the court to
declare that it is NOT a violation of the Digital Millennium Copyright
Act (DMCA) and is protected by the First Amendment for Professor
Edward Felten and his team to publish their scientific paper, "Reading
Between the Lines: Lessons from the SDMI Challenge", or discuss their
findings publicly at a USENIX Security Symposium in August.

next time Felton needs to ignore letters and keep going untill the RIAA or the MPAA sues him. then they can not deny that they intended to follow through with the threat since they brought him to court. his case will be much stronger.

I can see how the judge threw out the case aginast RIAA/SMDI party because a lack of evidence that harm would come to the plaintiffs, but I totaly disagree about his reasonings for mootnes on the part of the Justice Dept. Code was not equated with writing/speech, so the sale of the professor's works to Scientific American would have not have been a criminal violation of the DMCA.

The best way to get rid of the DMCA and a bunch of other BS that gets passed through congress is to pass one single law. The law would state: "Machine readable encodings are legaly equivalent to human readable text."

As a direct consequence the DMCA would be in violation of the 1st ammendment. Any patents on software would be voided because text to the best of my knowlage is only copywritable, not patentable. The headache of stupid digital legislation would hopefully be behind us.

Interesting article. The judge in the case equated code with speech, but said that the speech wasn't expresive enough to deserve protection. Now if that isn't a load of BS... I propose an elongated version of the law more dummy proof for clueless judges:

The DMCA would be in violation of the first amendment because machine code would be equated with free speech. The DMCA states that it is illegal to publish machine code that circumvents copyright protections. If speech were equated with code then the DMCA would also make it illegal to publish human readable articles outlining copyright protections. That would be a clear violation of the first amendment of the US constitution protecting free speech.

Quite the contrary. Software is machine readable code. If machine readable code were equated with human text then software would be nothing more than an electronic book in the eyes of the law. Any patents on books would render the ideas contained in them to be the sole property of the writer.

Kind of silly to patent a book. Publishing it gives the ideas contained in it to the buyers, thus giving them the right to use the information contained there. Buy selling the book you are in effect selling the "intelectual property" of the patent. Once sold the buyer could do with it what they want. Even use the text as research material for another text whether it be machine or human readable.

There would be one string attached that some of us might not like though. What of the GPL? Kind of renders it ineffective in a sense. This isn't all bad though. Since machine code would be considered the same as human text you could reverse engineer the heck out of software, and it would be no different than trying to read Kant. The GPL wouldn't be needed anymore. Anyway, its not the GPL that makes free and open software. It's the coders who spend many an hour scratching all those software itches they have. With the advent of the WWW colaberation has hit a critical mass where we don't need legal stonewalling to bring free software to the masses.

What Felton should have done is write the RIAA back saying "BLOW ME" and published the paper. This would have forced the RIAA to either sue him or loose thier ability to to sue anyone for the same issue. As it stands, we have lost a chance to get a constitutional ruling on the DMCA and the RIAA has lost nothing. I beleive he and the EFF mishandled this case.

I am sure if Felton knew then what he knows now, which is the RIAA would back down once threatened with a counter suit, I am sure he would have done exactly what I described. This of course is why the subject is "20-20 Hindsight"

"This judge apparently believes that the fact that hundreds of scientists are currently afraid to publish their work and that scientific conferences are relocating overseas isn't a problem," noted Robin Gross, EFF Intellectual Property Attorney.

The real issue here is the definition of moot. In the case of Felten, it is a moot point. He won the battle to publish his findings. Perhaps the EFF hadn't defined their case broadly enough to include the hundreds of scientists who are currently stifled by similar threats. Since I'm not privy to the briefs, thats pure speculation. But remember, judges don't act out of conscience or their own belief system, but rather based on their perceptions of the law and the merits of the case as presented by the lawyers. The judge may well see merit in the case that the lawyers didn't adequately present, but they may not act on that!

It seems prima facie that EFF and Felten have an important case. Lets hope they can cross all their Ts and dot all their Is during the appeal process.

This article really opened my eyes. It made me realize something important. Slashdot and 2600 always paint a grim, horrible picture of judges, telling us that they decided after only twenty-five minutes of debate, that they're always completely uninformed, etcetera. But in this case, Felten, the EFF, and their vocal supporters like Slashdot and 2600 are the ones who are wrong.

The RIAA is clearly an evil organization. They and their cohorts like Disney and the MPAA even make open statements about how privacy laws are an obstacle to their profits. There's no question that they are evil. But judges have to take cases, at least for the most part, on an action-by-action basis. In this case, the RIAA did something clearly evil (threatening Felten), but they then rectified it. All speculation about their motives aside, they DID rectify it, for whatever reason. Yet after they rectify it, Felten and the EFF try to go after the RIAA in an attempt to get a fully illegal and immoral immunity from prosecution, despite the lack of an ongoing controversy or action on the RIAA's part. If it were the RIAA asking the courts for the right never to be sued by scientific researchers or the EFF, all of us would've said that their actions were illegal, immoral, and just plain ridiculous. But when scientific researchers and the EFF ask the courts for the right never to be seued by the RIAA, we hail it as a wonderful thing and call its rejection a blow against freedom. That's just ridiculous.

I fully believe that the RIAA and the DMCA are evil, and that Felten should not be stopped from publishing his work. But the RIAA deserves their right to sue, just like we have the right to sue them. Felten's attempts to get immunity against being sued by the RIAA is playing dirty and going even below their level, because by asking for a right not to be sued, Felten was trying to take away the RIAA's freedom to sue people that may legitimately wrong them. While some may call this flamebait, I just think that this is one of those instances where we were wrong. This case wasn't a fight for freedom. It was a fight to take away the freedoms of others because we don't like what they're doing and the way they use their rights. Isn't that exactly what the RIAA has been trying to do to us?

Just because your opponent fights dirty doesn't mean that it isn't wrong for you to do the same.

declaratory judgment
n. a judgment of a court which determines the rights of parties
without ordering anything be done or awarding damages. While this
borders on the prohibited "advisory opinion," it is allowed to nip
controversies in the bud. Examples: a party to a contract may seek
the legal interpretation of a contract to determine the parties'
rights, or a corporation may ask a court to decide whether a new tax
is truly applicable to that business before it pays it.
See also: declaratory relief

declaratory relief
n. a judge's determination (called a "declaratory judgment") of the
parties' rights under a contract or a statute often requested (prayed
for) in a lawsuit over a contract. The theory is that an early
resolution of legal rights will resolve some or all of the other
issues in the matter.
See also: declaratory judgment

"it's like a thief (acting on info that he'll get caught) gives back the stolen goods and then walks because, see, he rectified his wrongdoing."

This is a bad analogy, and here's why:

The RIAA (and friends) did nothing illegal by informing Felton of their intent (threat) to sue. It is well within their right to do so.

The thief in your analogy, however DID do something illegal: he actually committed the theft.

"A more apt comparison might be a mafia hitman threatening to break someone's limbs with a baseball bat he's carrying with him. When brought before a judge, said hitman proceeds to say "But your honor, I was only joking!" and then walks."

Again, this analogy is also inaccurate for the same reason: In this case, the thug committed a crime by threatening physical harm, which is illegal.

The real difference here is that the RIAA committed no (legal) wrongdoing before their retraction, whereas the thief and thug did.

that these large corporation and orginization use there right to sue as scare tatcics, and they need to be stopped.
If Felton had not gotten lawyers, do you think they would have gone "oops, you're right Prof, go ahead and publish your work"?
there has to be a reason for corporations to stop sending threatning letters to people just cause they do something the corporation don't like.
If Felton can prove a loss of income(scientific America) I'd love to see him sue for that loss.

Rectify it??? Just because things could have been worse doesn't heal the damage already caused. How can they rectify the denial of the ability to publish a paper at one of the more prestigious math conferences? In fact, they didn't even try.

They figured that they didn't have to, and they appear to have been right. Just guess how anyone without a team of lawyers on his own side would have fared!

If the judge isn't corrupt, and if the law is fairly represented, then the Law is corrupt. The stipulations that both sides agree to make that quite clear. (Unless there is some logical slip that I didn't notice.)

When laws are interpreted in this way, the citizenry ceases to honor them, and only obeys them either as a matter of habit, or when they feel that they might get caught. Governments that foster such actions through their own actions should be considered treasonous. Politicians that pass laws which encourage such behavior are in violation of their oaths of office. Anyone who has ever sworn a loyalty oath, and who supports such laws, is in violation of that oath, and should be immediately subjected to the penalties that were promissed.

They backed down from the threat, and allowed Felten to publish his paper without prosecution. They were being assholes and at some point they decided to stop being assholes. In my mind, that qualifies as rectifying the situation.

I think this is going to take pure numbers. If enough scholars try to publish blatantly illegal (according to DMCA) papers, and the RIAA/MPAA threatens and backs down on all of them after the damage is done, there will have been enough precedent that a later judge will not be able to ignore.

...proceeding further would be "pre-enforcement review", which is not permitted.

This doesn't make any sense to me. No one should EVER be prosecuted under a law that is unconstitutional in nature.

Presumably it's the legislature's responsibility to make sure the laws they pass meet the conditions of constitutionality, but examples like the DMCA demonstrate that they're clearly not doing a very good job of that.

The courts should be reviewing every law that's passed BEFORE it goes into effect. We shouldn't have to tear any Skylarovs away from their families and let them fester in jail while the constitutionality questions surrounding the law they were imprisoned under get hammered out.

The courts should be reviewing every law that's passed BEFORE it goes into effect.

...and people complain about crowded courts now.

For better or worse, there's a presumption that Congress passes laws that are constitutional. As much as we might be upset by "bad" laws, do you really want to clog up the courts that way?

Who would be the party in interest? If you REQUIRE court review, you'll have to pay someone. Private attorneys? Sign me up, sounds like subsidies for bored litigators. Note that you can't use the Justice Department, since they're the ones that would have to defend the law.

Who's gonna stand up and challenge (in court) the constitutionality of laws establishing the George W. Bush presidential library, or national broccoli month?

While there are often doozies (like the DMCA, or the law outlawing flag burning) that are (arguably) unconstitutional "on their face", many of the laws that are ruled unconstitutional are ruled so because they're unconstitutional "as applied" to a particular plaintiff.

There's also that little troubling thing in the Constitution about Federal courts only having jurisdiction over actual "cases and controversies", but enough ink is being spilled over that issue with regard to the Felten case.

Your rant makes for a nice position on talk radio or for fist-pounding on the table, but if you think things through, it's nearly impossible to implement.

It is the Congress job to make laws...
It is the Presidents job to enforce laws...
It is the Coutrs job to interpert laws...

Most of us know about prior restriant, bear with me for a moment and use that as a stepping stone. The court can't block something before it is released, they can only censor it after it has been released.

The court is reactive, not proactive, they can't go out choose the battles themselves, the battles have to be brought to them with good merit. That means they can't look at a law and decide if it is Constitutional unless someone has been injured (sued, imprisoned, blah blah) by that law and the person that is injured is fighting back based on the grounds that the law is unconstitutional.

It may seem off topic but a very relavant example is the War Powers Act that says Congress can Call Back Troops after 60 days if they havn't voted to Declare War, this Act is completly unconstitutional as the constitution it specifically states that the President is the Commander in Chief. If Congress ever tries to call back troops they would be violating the seperation of powers. Yet we still have the War Powers Act and the Supreme Court has never heard a case on it, why? Becuase Congress has never even thought of trying to use the War Powers Act because they know that 30 minutes after they did three dozen lawyers from the Whitehouse would be knocking on the Supreme Courts door screaming that it is unconstitutional.

Like Cato said, there are severe dangers in judicial pre-review of a law.

However, I would love a Congressional rule forcing censure of at least those co-sponsoring, if not also those voting for, a bill later ruled unconstitutional "on its face." Then say we propose a "three strikes" rule to go with that.

But we know that wouldn't happen because it would end grandstanding for brownie points (CDA/COPA) and paying back bribes (DMCA).

Does anyone else seem to get a sense that in the not-so-distant future the only people who will be allowed to access, examine, copy, quote, share and distribute information will be teachers?

Can I show a movie to a bunch of strangers? No, that constitutes a "public performance" and I would get fined for it. But can teachers show a movie to their class? Apparently they can.

Can I put an a clip from a TV show on my webpage and point out why it's so particularly funny? No, that's illegal copyright infringement and lawyers would have me take it down. But can teachers put a clip from a TV show on their webserver and ask the class to write a ten page paper on the message? Apparently they can.

Can I disassemble an encryption format and post the result for others to examine and duplicate? No, that's a DMCA violation and the FBI would be after me. But can teachers disassemble an encryption format and post an in-depth analysis of how it works (or doesn't work)? Apparently they can.

I could go on, but it seems to me that in the coming years, I might want to think about moving towards "Education" as an excuse for information exchange.

Don't have a warez group. Have a "copy protection analysis and discussion" group. Don't have a TVRip group. Have a "Pop culture examination and analysis" group.

I mean, who's an authority on something? Who is a teacher except someone who can explain concepts to those who do not yet know them?

If Felten seems to enjoy some magical protection, in the eyes of the court, why can't any other teacher? Why can't I become a teacher and enjoy the same protection?

My wife is a teacher, and I can tell you it is not always that easy. In our school district, parents have the right to challenge the showing of any movie in class. If this happens, the teacher needs to be able to justify showing the film, usually by showing how it fits in with what they are teaching. This seems like a perfectly reasonable system, but it is often abused by groups with a political or business agenda. For example, teachers in our school district are reluctant to show Disney films no matter how relevant they may be because they are invariably challenged by a parent.

Seriously, let's think this thru. RIAA took an action against a specific professor, intending to cow any other educational research of it's illigitimate copy protection methods.

They succeeded in creating terror. Now, even though they "made whole" the professor, no other university or college will permit their researchers from investigating the watermarking techniques, as they will be dragged into court and subjected to aspersions against their institution.

This is what terrorists do. They get people scared it will happen to them.

Thus, RIAA is akin to the Taliban. They try to say "Forget 9-11", but we know they will keep attacking us.

And the judge fails to understand that RIAA should be charged as a terrorist organization threatening the peace and prosperity of American researchers.

Somewhat related debate at CMU [cmu.edu] today between Touretzky and Shamos, who testified on opposite sides of the MPAA vs Reimerdes court cases. A CS department page on the debate [cmu.edu] is up, and it is in progress right now to a packed auditorium. Both of these men are Carnegie Mellon professors, and the debate has been punctuated by slides such as "this slide is illegal" and "you are one click away from destroying the motion picture industry...
Click here to continue"

This DOJ filing [eff.org] seems to be saying "put a label on it that says RESEARCH USE ONLY, keep your nose clean, and you are protected from the DMCA." Which is pretty much the best face you can possibly put on such ill advised legislation.
--Charlie

So RIAA threatens to sue under DCMA if Felton publishes his research. This scares Felton and he doesn't publish. Doesn't appreciate the threat so he sues. RIAA withdraws "threat". Court says, "Well, there is no threat now, so case dismissed."

The very factors that made Felten a "good" subject for a civil liberties case allowed the judge to rule that there wasn't a case at all. Both the Justice Department and the RIAA prefer to have their test cases with suitably unsavory defendants - Russian pirates and shady hacker magazines are much preferred over all-American Princeton professors.

Did you ever consider that the reason they prefer a test case with Dmitry rather than Felton is because Dmitry broke the law and Felton did not? I said it before the case and I'll say it again. Felton lacks standing and the case was made moot when the RIAA withdrew the threat.

This is something that really bothers me about this whole situation. It seems the only way to challenge a law is to become a criminal. As I understood it, what Felton was trying to do was get a firm decision from the courts declaring once-and-for-all whether or not publishing information about decryption is grounds for being sued - or threatened with suits! - under the DMCA.

I got the impression that the judge was, in effect, saying "I don't personally think what you were doing was grounds for lawsuit but since the threat was withdrawn I don't have to decide officially. So there. Case dismissed. Come back next time somebody sues you."

It seems that in the US legal system, if you think a law is unconstitutional, the only way to get the courts to decide on it is to break the law and get yourself arrested. If you're only in jail for a year or less (while the courts deliberate and lawyers babble and corporations exchange money and so on) before the courts let you go, then you were right...

No, see Roe vs. Wade. In that case, a pregnant woman sued to get a declaratory judgement permitting her to get an abortion. (She later got an abortion in another state, before the ruling, but this has nothing to do with why she had standing). You do not have to break the law to challenge it, but you have to have the intention to break the law.

It seems that in the US legal system, if you think a law is unconstitutional, the only way to get the courts to decide on it is to break the law and get yourself arrested.

The plaintiffs are not "manufacturing", according to the judge; nor are they offering their code for sale. The judge segues to what he sees as deficiencies in the plaintiff's legal complaint - they did not assert they planned to fully violate the criminal sections of the DMCA, mainly their assertions were that the Act is unclear and vague. Finally he closes - the plaintiffs must have an "objectively reasonable fear" of prosecution in order for the required legal conflict to exist, and the judge sees no such objectively reasonable fear.

I guess he missed that whole DeCSS thing.

With this ruling there seems to be a precedent for making DeCSS available again without fear of being legally assraped by the RIAA. Are there any legal-types who want to speculate on this?

In some odd way, this case may in fact weaken or at least open a loophole in the DMCA. Since Corley neither wrote DeCSS or offered it for sale nor asserted he planned to violate the DMCA, the case should be thrown out as the Felton case was. Corley and the EFF should argue these very points when they apeal to the Supreme Court.

Only if these judges actually knew what was really going on. They state the primary reason the DeCSS source isnt free speech is due to the fact that it does not need a "human component" to be functional. They make analogies to recipies and blueprints, as follows:

The Appellants vigorously reject the idea that computer code can be regulated according to any different standard than that applicable to pure speech, i.e., speech that lacks a nonspeech component. Although recognizing that code is a series of instructions to a computer, they argue that code is no different, for First Amendment purposes, than blueprints that instruct an engineer or recipes that instruct a cook. See Supplemental Brief for Appellants at 2, 3.27 We disagree. Unlike a blueprint or a recipe, which cannot yield any functional result without human comprehension of its content, human decision-making, and human action, computer code can instantly cause a computer to accomplish tasks and instantly render the results of those tasks available throughout the world via the Internet. The only human action required to achieve these results can be as limited and instantaneous as a single click of a mouse.

This makes no sense whatsoever! So, if non-humans (computers, machines, robots, etc.) can execute a particular element of free speech without human intervention, the constitution doesnt apply! Commands by any non-human arent covered by free speech.... this is horrible.

We all know any attempts to fight the DMCA or the RIAA (the product and the producer) has, is and will continue to be a waste of time. Why? Who knows, maybe every judge can be bought, maybe they just dont realise what they're talking about. My point is that this isnt news. We all knew exactly what would and will continue to happend in all similar cases.

Now, im not a US citizen, neither do I plan to visit the US, so im not worried about the DMCA or the RIAA. What I am worried about is that this is sending a message out to other governments and other organizations saying that buying laws is ok. Keeping people in jail for insane reasons is ok. Threatening to slap lawsuits on someone that doesnt obey you 100% is ok. Evidently, it is ok.

I agree with Alan in censoring security changes. He makes a very valid point. The problem isnt wheter someone will slap a lawsuit on you. The problem is wheter someone CAN slap a lawsuit on you.

In theory, I could setup a Non Profit organization, which provides grants and a place for "Researchers" to pubish thier findings. Say I charge a $1 processing fee, I give a $1 grant for research and provide a Website for publication of the research. I very carefully place a "FOR RESEARCH AND EDUCATIONAL PURPOSES ONLY" disclaimer at the top of every article. Now these Hackers have protection from the DMCA, based on the presedent of this court case.

"Before we leave this matter I wish to comment on the theory implied by you, Mr. Weems, when you claimed damage to your client. There has grown up in the minds of certain groups in this country the notion that because a man or corporation has made a profit out of the public for a number of years, the government and the courts are charged with the duty of guaranteeing such profit in the future, even in the face of changing circumstances and contrary to public interest. This strange doctrine is not supported by statute nor common
law. Neither individuals nor corporations have any right to come in to court and ask that the clock of history be stopped, or turned back."

All they done is make clear to him that they will threaten him. They haven't actually really pursued any legal action against him, and they have declared (for what little it's worth) that they don't intend to. So they have in fact intimidated him, but with indirect threats.

It's as if the guy with the stick (or say, a lug wrench fixing his car) had glared across the street at you, and you knew he was trying to intimidate you. You still can't pursue legal action against him until he comes over and holds the lug wrench over your head, even though he's made his intentions clear.

It's as if the guy with the stick (or say, a lug wrench fixing his car) had glared across the street at you, and you knew he was trying to intimidate you. You still can't pursue legal action against him until he comes over and holds the lug wrench over your head, even though he's made his intentions clear.

The second his intentions are clear (to you) you are free to act. If you fear for your safety, you can even kill him, legally.

The problem here is that it's perfectly legal for large corporations to strong-arm the little guy with threatening letters, and subsequently fail to follow through with the threat.

It is legal for roughly the same reasons that few children are ever punished for threatening to tell (as in "ohm, I'm gonna tell...you're gonna get in in truhhhh-ble!") mom, the teacher, etc. It is also legal to threaten to call the cops in a situations that aren't criminal. Unfortunately, it is rarely the case that one side has an overwhelming legal advantage in cases like this.

I see this as being a perfect example of the tragedy of the commons. Individuals who are threatened by major corporations fold rather than fight the battle that would prevent the corp from similarly threatening other individuals. The corp then goes on to threaten other individuals, who behave likewise. One, or a few, who stood up and fought would stop such behavior. Unfortunately, people prefer convenience to honor.

No, what would happen is that the little guy that stood up will be paying off laywer bills for the rest of his life or going bankrupt. Then there is the worst case, getting convicted for "piracy" and getting thrown in the clink for a few years.

I'm hoping that will start to change now with the EFF acting a bit like the ACLU does, but it might be too late to make a difference. Keep your fingers crossed that it's not.

Right...it's that fear that prevents people from standing up to the big corps. I suppose if they accused you of murder you'd roll over and give up, too...worst case is about the same. When you roll over and let the corps do what they will to you, you are tacitly giving them permission to do that to EVERY OTHER HUMAN BEING IN THE WORLD, and you become complicit in their actions.

We're in a battle here. In a battle, some people die so that others can live. Worst case in a war is that you'll die. Does that justify running away? I don't think so.

I also understand perfectly. People who don't stand up to the corps consider ONLY the consequences to themselves. They act without regard to the consequences for others. Their inaction causes problems for others, just as in the classic example of the tragedy of the commons (ie owning one extra cow) individuals actions cause problems for others.

We must think how our actions/inactions affect everyone. Failure to do so is blatant selfishness. Doing the right thing is not easy.

P.S. Had Felten gone ahead and published, he'd still have won. The RIAA would NOT have backed down otherwise. Of course, hindsight is 20/20. I applaud his decision to ultimately pursue the case, but wish he'd either called the RIAA's bluff, proving it to be a bluff, or let them take irrevocable action that could have formed the basis of a case.